Guilty plea is one of the greatest mitigating factors in sentencing criminal proceedings. If such plea is accepted, the Court may reduce up to one third of sentence. That said, pleading guilty is not necessarily taken into account by the Court to grant a reduction of sentence to the full extent of a one-third discount. In The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the “National Security Law” or “NSL”), the one-third sentencing discount, if applied, cannot lead to a sentence below the lower limit of a prescribed sentencing band.
In HKSAR v. Yeung Kin Man [2000] HKCA 82 (“YEUNG Kin Man”), it was an appellate case and the applicant applied for leave to appeal against sentence. The trial judge adopted 27 years altogether as a starting point for two counts for trafficking in a dangerous drug. Whilst the trial judge had given substantial credit to the applicant for his guilty plea and full cooperation with the prosecution, the discount of sentence given was only 7 years. He explained that the evidence was “overwhelming” in these narcotic offences. In another HKSAR v. Wong Ka-kuen and Another [1999] HKCA 160 (“WONG Ka-Kuen and Another”), while the first applicant sought leave to appeal against conviction, the second applicant sought leave to appeal against his sentence on the ground that a one-third discount was not given to him from the starting point of two counts of drug offence, namely 27 years’ imprisonment on the count for manufacturing heroin hydrochloride and 24 years’ imprisonment on the count for the drug trafficking offence. The trial judge explained, in view of the evidence against the second applicant, it would be difficult to see what other alternatives would have been available apart from pleading guilty. Therefore, he did not give the second applicant the full credit of plea of guilty to a one-third discount. Notwithstanding the sentencing made by the trial judges in the above two cases, the appellate Courts had different views on the part of mitigation of sentence in respect of guilty plea.
The appellate Court in YEUNG Kin Man cited WONG Ka-kuen and Another in which Suart-Moore JA (as he then was) said “….This court has stressed on frequent occasions that in the absence of good reasons where a timely plea has been entered, a defendant is entitled to his full one-third discount. Being caught ‘red-handed’ is not in the view of this Court, a sufficient reason to disallow the full discount…..” [9]. The appellate Court further added that giving a lesser discount solely by reason of the overwhelming evidence was wrong in WONG Ka-kuen and Another. In the judgment, the appellate Court allowed the appeal and gave the second applicant the full credit of one-third discount from the starting point of 27 years.
Notwithstanding the above appellate decisions, where the Court finds that there are good reasons in certain circumstances, it may not necessarily exercise its discretion to grant the full one-third discount to a defendant. Being caught ‘red-handed’ and overwhelming evidence are not the good reasons. In the context of the National Security Law, the one-third sentencing discount for guilty plea or voluntary surrender may not necessarily come to its full extent. In HKSAR v. Lui Sai Yu (呂世瑜) [2023] HKCFA 26, the appellant was found guilty of the offence under Article 21 of the National Security Law and it was determined that his offence was of a serious nature. This led to his sentence coming within the prescribed upper band with the sentencing range from not less than five years but not more than ten years [63]. Apart from the three conditions permitting a downward adjustment of the penalty as set out in Article 33, non-NSL examples of mitigation involving circumstances similar to those three conditions may be sought as guidance for mitigation and one of which is voluntary surrender [73]. However, it was determined that the one-third sentencing discount for the appellant’s guilty plea could not lead to his sentence below the lower limit of the upper band i.e. five years [67-68].
November 2024
Dr. Anthony Lai and Mr. Carlos Li
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